The International Atomic Energy Agency (IAEA) on June 9 referred Syria to the UN Security Council for violating its safeguards obligations, following a three-year investigation into that country’s alleged secret nuclear activities.

Western governments said the agency’s move was important to maintain the integrity of the nuclear nonproliferation regime, but the vote divided the 35-member IAEA Board of Governors, with several states calling into question the agency’s grounds for sending the issue to the United Nations.

The board referred Syria’s case to the UN in a 17-6 vote following a May 24 IAEA report concluding that a facility that Damascus had been constructing “was very likely a nuclear reactor.” Israel destroyed the facility, located at a site called Dair al Zour, in a September 2007 air strike. (See ACT, October 2007.)

The June 9 board resolution found Syria in noncompliance with its safeguards obligations for failing to declare the alleged reactor to the agency and for not providing the IAEA with design information for the facility prior to construction. U.S. Permanent Representative to the IAEA Glyn Davies said during a press briefing following the board vote that Syria’s action “represents one of the most serious safeguards violations possible.” Washington accuses Syria of building the suspected reactor to produce plutonium for nuclear weapons. (See ACT, June 2008.)

China and Russia voted against the resolution. Both countries are veto-wielding permanent members of the UN Security Council and can block any attempted council action against Syria. Azerbaijan, Ecuador, Pakistan, and Venezuela also opposed the measure.

In a statement before the vote, Russia said that although Syria might have engaged in some wrongdoing, the issue was not one that the council needed to address.

“The site at Dair al Zour no longer exists and therefore poses no threat to international peace and security,” the statement said. The resolution’s preamble says that Syria’s actions “have given rise to concerns regarding international peace and security,” language consistent with the Security Council’s responsibilities under the UN Charter.

Although the resolution received the simple majority needed to pass, 11 board members abstained, leaving the resolution with approval from roughly half of the board. One country, Mongolia, was absent for the vote.

The abstentions included three countries currently holding rotating seats on the Security Council: Brazil, India, and South Africa.

Diplomats from countries that abstained said last month that their governments did not believe that the case for referral was strong enough. They noted that the IAEA assessment concluding that the Dair al Zour facility “was very likely” a reactor was not definitive. “The legal basis was fragile,” one diplomat told Arms Control Today by e-mail June 24.

The diplomat also issued a judgment similar to Russia’s, saying that “if there ever was a threat, it was destroyed by the Israelis.”

IAEA’s ‘Best Assessment’

In his opening statement during the board’s June 6-10 meeting, IAEA Director-General Yukiya Amano said, “[T]his is the best assessment of the agency, based on all the information in its possession.” Although diplomats from abstaining countries did not directly dispute the IAEA technical findings on the alleged Syrian reactor, they raised concerns about the agency’s reliance on intelligence information from other countries.

The United States has been a key source of information on the Dair al Zour facility. It first briefed the IAEA on the matter in April 2008, leading to the agency’s investigation.

Former U.S. and IAEA officials said that the board’s decision to act on the agency’s “best assessment” rather than definitive proof of noncompliance was new territory for the IAEA.

Mark Fitzpatrick, former deputy assistant secretary of state for nonproliferation, said in a June 24 e-mail that the IAEA’s “willingness and ability to draw reasonable conclusions in the Dair al Zour case despite Syria’s refusal to cooperate with the investigation set an important precedent.”

In a separate June 24 e-mail, former IAEA Deputy Director-General for Safeguards Bruno Pellaud said that the decision is “a new tool for the IAEA,” but cautioned that it was not as strong as a referral based on a clear noncompliance determination.

Such a precedent may have implications for the IAEA investigation into Iran’s suspected nuclear weapons program. The United States has asked the IAEA to make a determination regarding Iran’s suspected work related to development of a nuclear warhead even though Iran has not cooperated with the agency’s investigation into those suspicions.

“We reiterate the urgent need for the Director General to provide to the Board as soon as possible his best assessment of the information related to possible military dimensions of Iran’s nuclear program,” Davies said in a June 9 statement to the board.

Special Inspection Unlikely

Diplomatic sources and former officials said that the IAEA board’s decision to refer Syria’s case to the UN made it unlikely the agency would call for a special inspection to require greater access to sites and information from Damascus.

IAEA safeguards agreements allow the agency to conduct a special inspection if the existing inspection mechanism “is not adequate for the agency to fulfill its responsibilities under the agreement.” Amano has consistently said in his reports to the board that Syria has not provided sufficient cooperation for the agency to carry out its work.

Amano also said in his opening statement that “it is deeply regrettable that the facility was destroyed” rather than being reported to the agency.

The United States had previously said that the IAEA needed to consider calling for a special inspection in Syria. (See ACT, October 2010.) Former IAEA Deputy Director-General for Safeguards Olli Heinonen, who led the agency’s investigation in Syria until last August, also has argued that the agency should make use of this authority.

“It would have been a logical step,” he said in a June 27 interview, adding, “In my view, the case would have been clearer, if the [IAEA] Secretariat would have used all authorities at its disposal.”

Heinonen told the U.S. House Foreign Affairs Committee on June 23, “The special inspection option should still be pursued, or the UN Security Council could also choose to provide wider authorities to the IAEA.”

Pellaud said that “a refusal of a special inspection [by Syria] would have lent much more substance to the referral.”

The special inspection provision has been used only twice: in Romania in 1992 at the Romanian government’s request, and in North Korea in 1993. Pyongyang rejected the inspection, touching off an international crisis leading to a nuclear freeze agreement with the United States a year later.

In an apparent response to the IAEA’s judgment that the Dair al Zour facility was very likely a nuclear reactor, Damascus sent a letter to Amano pledging to work with the agency to resolve the issue. According to diplomats familiar with the letter, sent two days after Amano’s May 24 report, Syria’s Atomic Energy Commission said that it was “ready to fully cooperate” with the IAEA but did not offer any details of what new information or access Damascus would provide to inspectors.

A senior Western official said during a June 3 background briefing that, on the issue of Syria’s sincerity in providing such cooperation, “the proof came yesterday” during a June 2 technical briefing by the IAEA Secretariat. When the IAEA made its case for why it had concluded the Dair al Zour facility was likely a reactor, Syria simply challenged the IAEA assessment rather than offering evidence to back its own claims, the official said.

Syria Already in UN Spotlight

The board decision to refer Syria’s nuclear file to the UN came at the same time that European governments are seeking to place pressure on Damascus for its crackdown against political protests. The day before the IAEA action, France, Germany, Portugal, and the United Kingdom circulated a draft resolution with the Security Council condemning Syria for human rights abuses. Facing veto threats from China and Russia, the sponsors pulled the resolution from consideration, French Foreign Minister Alain Juppé told the French National Assembly June 14.

Some IAEA board members were wary of taking action in that political context. A Russian diplomatic source called the IAEA resolution “untimely.”

The senior Western official said June 3 that other members of the board raised concerns that a referral might inflame the political situation in Syria, a prospect the official said was unlikely. “I don’t see a link directly between this [nuclear] issue” and political developments in Syria, he said, arguing that the IAEA has a responsibility to address Syria’s nuclear program irrespective of events in the country.

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